SZECT v Minister for Immigration and Multicultural &

[2005] FCA 1099

FEDERAL COURT OF AUSTRALIA

SZECT v Minister for Immigration & Multicultural &
Indigenous Affairs [2005] FCA 1099

SZECT v MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

NSD 249 OF 2005

LINDGREN J
4 AUGUST 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 249 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZECT
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

LINDGREN

DATE OF ORDER:

4 AUGUST 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The Refugee Review Tribunal be added as second respondent to the appeal.

2.The appeal be dismissed.

3.The appellant pay the respondents’ costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 249 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZECT
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	LINDGREN J
DATE:	4 AUGUST 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

1. The appellant appeals from a decision of the Federal Magistrates Court of Australia (‘FMCA’) given on 2 February 2005 (SZECT v Minister for Immigration [2005] FMCA 132). The FMCA dismissed an application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’).

2. On 25 June 2004, the Tribunal had affirmed a decision of a delegate of the respondent Minister (‘the Delegate’ and ‘the Minister’ respectively) not to grant a protection visa to the appellant.   The Tribunal’s decision was handed down on 22 July 2004. 

   Background facts

3. The appellant arrived in Australia on 6 December 2003 on a visitor visa.   He lodged an application for a protection (Class XA) visa on 12 January 2004.  The Delegate’s adverse decision on that application was made on 19 January 2004.   On 12 February 2004, the appellant applied to the Tribunal for review of the Delegate’s decision and he attended a Tribunal hearing on 3 May 2004.

4. The appellant’s claims were set out in a statement which accompanied his original application for the protection visa.  In brief, he claimed that most of his family members were active members of the Communist Party of India (Marxist) (‘CPI(M)’) and that he feared persecution from members of the Bharatiya Janata Party or Indian Peoples Party (‘BJP’).  He claimed that he had been a member of the Student Federation of India (‘SFI’) and the Democratic Youth Federation of India (‘DYFI’), which supported the CPI(M).

5. The appellant also claimed to fear persecution as a Christian, given that the ruling BJP mostly supported Hindus. 

6. The appellant claimed that he had completed his articles as a chartered accountant and was continuing studies to prepare for examinations but was not able to complete them due to his fear of persecution.  He said that he left India and went to Dubai in the United Arab Emirates (‘UAE’) where he worked.  He said that his employer had discriminated against him there on religious grounds, the employer and, indeed the country generally, being predominantly Muslim.

7. In a statement dated 12 February 2004 which accompanied the appellant's application to the Tribunal he made certain further claims to the effect that he had been injured and his family threatened.    His earlier statement had not mentioned those matters, although it had referred to his fear of being attacked.  In addition, he provided a large volume of newspaper reports and other documents.  However, these did not refer specifically to the appellant.

8. The appellant stated that on 2 December 2003 he returned to India (from Dubai) for one day but stayed at a relative’s house near the airport rather than at his parents’ home.  He said his sister and parents came to see him there, and that on 4 December 2003 he returned to the UAE, from which he left for Australian on 5 December 2003.

   Tribunal’s reasons for decision

9. The Tribunal accepted that the appellant was a citizen of India and assessed his claims against that country. 

10. The Tribunal accepted that the appellant was unable to return to Dubai without first returning to India because his UAE residence visa had been cancelled.  The Tribunal thought that the question whether the appellant would be subjected to persecution in Dubai was not critical unless the appellant had a well-founded fear of persecution in India.

11. The member said that he was not satisfied that there was any substance in the appellant’s claim to face Convention-related persecution in India.  The member referred to ‘substantial material on inter-communal clashes in India’, but observed that none of the material related directly to the appellant.

12. The member referred to a claim made by the appellant that the material which he provided mentioned the organisation to which he belonged and its involvement in the violence and suggested that this meant that the material was about the appellant.  The member found that claim ‘contrived and illogical’. 

13. The Tribunal referred to independent country information.  It also referred to the murder of a BJP member by members of the Indian Communist Party in November 2003, and to an earlier event of 2001 in which a member of a Communist youth organisation was killed.  Again, the member thought that there was nothing in the material provided by the appellant relating to these matters or in the claims which he made in the course of the hearing before the Tribunal to make any ‘direct or meaningful link’ between the appellant and the incident.  The appellant was in Dubai in November 2003.

14. The appellant acknowledged that there were places in India where the problems which he claims to have experienced in Kerala did not exist, but claimed that he had also experienced problems in Mysore.  He asserted that those who wished to harm him could go wherever he resettled.  However, the member found the appellant’s responses unconvincing in the light of independent country information.

15. The member concluded by stating that, taking into account the appellant’s testimony and the independent country information, there was not a real chance that the appellant would suffer harm amounting to Convention persecution in the reasonably foreseeable future.  In addition, he found that it would be possible and reasonable for the appellant to relocate within India if he wished to do so.

    The FMCA’s reasons for decision

16. The Federal Magistrate considered that, generally speaking, the application for review was an attempt to have the merits reconsidered.  The Federal Magistrate found no error amounting to a jurisdictional error.  He also rejected a claim made by the appellant that the Tribunal had not considered the ‘statements and evidences [sic] produced’.

17. There is, however, a particular matter dealt with in the learned Federal Magistrate’s reasons to which I should refer.  This concerned a contact which had been made with the Department’s office in Dubai on 7 February 2004 by the appellant’s employer. 

18. The Tribunal’s reasons said that a named person from the business where the appellant worked in Dubai sought information on the appellant’s failure to return to his employment from Australia.  The individual claimed that the employer had sent the appellant to Australia for three weeks for English language training. 

19. The individual claimed to have spoken to the appellant who said that he had found a better job in Australia and would not be returning to Dubai.  The person said that he was upset that the appellant would not be returning, in view of the company’s considerable expenditure in sending the appellant to Australia for training.

20. Before the FMCA, the appellant claimed not to have been given any advance notice by the Tribunal of the existence of the file note of this conversation.  Apparently, he contended before the FMCA that if he had been told about it, he would have pointed out that it assisted his contention that his employer in Dubai was seeking to end his employment and also to mislead the Australian Immigration Office.

21. He claimed that the statement attributed to his employer in the file note suggesting that the appellant had obtained employment in Australia prior to 7 February 2004, could be shown to be false because in fact he had been given an Australian work permit only on 7 March 2004. 

22. The Federal Magistrate invited the appellant to give oral evidence under oath in relation to whether he had been given an opportunity before the Tribunal to make these points.  The appellant took the opportunity.  I should note in passing that there was not before the FMCA a transcript of the proceeding before the Tribunal, and a copy of that transcript is not before me.

23. The appellant testified that he had not been told about the file note in the course of the Tribunal hearing or at any other time.  He said that if he had been told about it he would have pointed out the falsity of the statement and made the point that it confirmed his claim that his employer was seeking to terminate his ability to work in Dubai.

24. In the ‘findings and reasons’ section of the Tribunal’s decision, the Tribunal recorded that in a letter dated 7 June 2004 to the Tribunal, the appellant claimed that his employer in Dubai had ‘taken steps to have his residence visa cancelled’.  The Tribunal member went on to say that the appellant’s claim in this respect was consistent with the file note of the contact made by the former employer with the office in Dubai.

25. The Federal Magistrate therefore concluded that the failure to allow the appellant to comment on the file note did not prejudice him before the Tribunal. 

    Consideration on the appeal

26. The amended notice of appeal sets out 17 grounds which are as follows:

    ‘1.The learned Federal Magistrate erred in law by not finding that the Refugee Review Tribunal had made a jurisdictional error and factual error in reaching the conclusion that the Appellant is not entitled to Protection Visa.

    2.The Federal Magistrate failed to see that the Tribunal had committed jurisdictional error and therefore should have remitted the matter to the Tribunal.

    3.The appellant states that the Tribunal could have dealt with the matter on merits rather than simply dismissing on technical grounds.

    4.The Federal Magistrate and the Refugee Tribunal should have seen that the appellant is an ordinary man and does not have legal knowledge as expected by them.

    5.The Federal Magistrate and the Tribunals should have seen that the appellant could not stay more in Dubai or India because of his religion and therefore he had no other option except to seek asylum in Australia.  The Federal Magistrate should have seen that the Tribunal had accepted the position of the appellant in relation to cancellation of Dubai visa.

    6.The Federal Magistrate and the Tribunal failed to see that the appellant satisfied the four key elements to the Convention definition.  The Tribunal should have seen that the appellant would come under the definition and the Federal Magistrate also failed in accepting the stand of the Tribunal.

    7.The Federal Magistrate committed error in accepting the contention of the Tribunal that the newspaper incidents in April 2003 do not relate directly to him.

    8.The Federal Magistrate committed error in accepting the finding of the Tribunal that the appellant does not face real chance of serious harm at the hands of the BJP party people.

    9.The appellant states that he has sufficient grounds to support his case on merits.

    10.The Federal Magistrate should have seen that the Tribunal had committed jurisdictional error in not accepting the contention of the appellant.  The Federal Magistrate committed mistake in saying that the appellant has not been able to identify any error.

    11.The Federal Magistrate failed to appreciate the amended application wherein the appellant had raised further contentions and established about the current fear if he returned to India.

    12.In paras 19 and 19 [sic – 20] the ‘reasons for judgment’ the Federal Magistrate should have found the matter in favour of the appellant.  The Federal Magistrate should have seen that procedural fairness was not followed and the Tribunal denied natural justice to the appellant.

    13.The Federal Magistrate should have seen that the appellant is not a legal expert and therefore should have accepted the implied unfair procedure followed by the Tribunal.

    14.When the Federal Magistrate had some doubt about what transpired at the hearing at the Refugee Review Tribunal (para 21 of the reasons for judgment) should have allowed the matter and directed the Tribunal to look at the matter afresh.

    15.Therefore for the above said point the Federal Magistrate should have seen that there was a failure to provide an opportunity to the appellant.

    16.The Federal Magistrate committed mistake in saying that the departmental file not [sic – note] did not prejudice him.

    17.In any event the Federal Magistrate should have remitted the matter to the Tribunal.’

    I invited the appellant to make submissions but he declined the invitation.

27. I agree with the submission made by the Minister that, apart from grounds relating to the matter just mentioned, the grounds of appeal seek to re-agitate the merits. 

28. It is possible to regard grounds 12 to 16 as raising a procedural fairness ground of the kind to which I have referred and the issue of non-compliance with sections 424A and 425 of the Migration Act 1958 (Cth) (‘the Act’).

29. In my opinion the Federal Magistrate was correct in proceeding as he did.  The evidence given by the appellant before the Federal Magistrate demonstrated that there remained no forensic advantage to the appellant in a disclosure of the file note at an earlier point, since the Tribunal drew from the file note the very conclusion which the appellant would have asked the Tribunal to draw on the basis of it.  The member noted the appellant’s claim that his previous employer had taken steps to have his (UAE) residence visa cancelled, and said he considered this consistent with the file note of the contact made with the Department by the appellant’s previous employer.

30. For the above reasons the appeal should be dismissed with costs.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:             15 August 2005

The Appellant appeared in person.
Counsel for the Respondent:	Ms S McNaughton
Solicitor for the Respondent:	Phillips Fox Lawyers
Date of Hearing:	4 August 2005
Date of Judgment:	4 August 2005